State Secrets Privilege

The Bush administration took a lot of heat for asserting the State Secrets privilege. Now, the Obama administration has asserted the privilege. Thus, it is important to understand the privilege and its implications.

The leading case is U.S. v. Reynolds, which is a 1953 Supreme Court case. There, the Court was presented with a civil action brought by the widows of civilians who were killed while passengers on an Air Force plane, which crashed. The Secretary of the Air Force sent a letter to the trial court, stating that the crash occurred during the testing of secret electronic equipment, and that the disclosure of certain documents would frustrate national security. The trial judge denied the request for non-disclosure, and appeals went all the way to the Supreme Court.

The High Court allowed the U.S. to assert the privilege, which is now known as the State Secrets Privilege. The Court in that case was careful to note that its decision was not grounded in the Constitution. That is, the privilege upheld in that case is not constitutionally-based. Instead, the Court found that a long line of case law had established the existence of the privilege.

It was declared that "[j]udicial experience with the privilege which protects military and state secrets has been limited in this country." But, the Court said, the privilege is "quite clearly" established in the "available precedents." The Court continued that "[t]here must be formal claim of privilege, lodged by the head of the department which has control over the matter." Also, the "court itself must determine whether the circumstances are appropriate for the claim of privilege, and yet do so without forcing a disclosure of the very thing the privilege is designed to protect."

The problem with this privilege is not its mere existence. Surely, some matters are so top secret and sensitive that they should not be disclosed in court, lest our security efforts be compromised. The problem is that the Executive Branch will abuse the privilege, asserting it too often and for self-serving purposes.

How could we know whether the privilege is being abused? As noted in Reynolds, it is up to the courts to guard the fine line between meritorious and frivolous assertions of the privilege. But, there is probably no way for a court to ever be certain whether or not the assertion of the privilege is appropriate, because the court will not be privy to the sensitive information.

Only the following can be said for certain: The privilege is not inherently evil, but it should be of limited application. The Bush DOJ used it quite often, which suggests that at least some its assertions were inappropriate. And, finally, it remains to be seen how often the Obama DOJ will assert the privilege.